Have you lost a job due to a background check?

Criminal Records & Jobs

Under federal law, it is illegal to deny you employment (or fire you) because of your criminal record if the policy or practice disproportionately and unjustifiably excludes people of a particular race or national origin (or another protected category). Because more African Americans and Hispanics are incarcerated in the United States, and have criminal records, policies that deny employment because of conviction status often have a disparate impact on those populations, and thus are illegal race discrimination. Click here for guidance from the Equal Employment Opportunities Commission about criminal conviction bans, and how they affect employers and you.

Under federal law, you also have the right to know what is on your background check before an employer makes any decision based on the report that affect your employment. Click here to read more about your background check rights under the Fair Credit Reporting Act, as prepared by the Federal Trade Commission.

Additionally, many states and cities have specific laws protecting and regulating the use of criminal history in making employment decisions and you should contact a lawyer to find out about your rights under any potential local laws.

Background Checks & Jobs

An employer must get your express written consent before requesting a background check on you from a private third party consumer reporting agency.

After obtaining a background check from a consumer reporting agency, the employer then must give you an opportunity to review the report for errors before taking an adverse action, like not hiring you, retracting an offer or removing you from a job.

The employer must also provide you with a statement of your rights under the Fair Credit Reporting Act.

For more information about your rights under the Fair Credit Reporting Act (the applicable federal law, also known as the “FCRA”) and applicable state laws, schedule a consult today.

Frequently Asked Questions

Do I have to agree to a background check?

In general, an employer can require a background check as a condition of employment. However, the employer must first get your signed written authorization, and otherwise follow the procedures set out in the Fair Credit Reporting Act (FCRA). Moreover, what your employer can ask you may be limited by state law.

Under the Equal Employment Opportunity Commission (EEOC), guidelines, employers should not exclude people based upon arrests that did not lead to conviction unless there is a “business justification.” Under New York State and City law, it is illegal to deny employment because of an arrest if it is not currently pending, and was terminated in your favor, unless the denial is specifically required or permitted by other laws. Many other states including California, Hawaii, Illinois, Massachusetts, Michigan, Ohio, Pennsylvania, Rhode Island, Utah, and Wisconsin also have restrictions on the use of arrest records in hiring.

Under the Equal Employment Opportunity Commission (EEOC) guidelines, employers should look at factors like the nature and gravity of the offense, the time since the offense, and the nature of the job, and should only exclude an applicant because of his or her criminal record if there is a “business justification.” This is because the exclusions may operate to disproportionately and unjustifiably exclude people of a particular race or national origin (or other protected category) in which case it would violate Title VII of the Civil Right Act of 1964. Under New York State and City law, it is illegal to deny employment because of a criminal conviction without considering the eight factors laid out in the New York Correction Law. Many other states also have restrictions on the use of criminal convictions in hiring.

Can a prospective employer make a decision not to hire me before providing me with a copy of a background check report compiled by a third-party consumer reporting agency?

No. The prospective employer must provide you with a copy of the background check it obtains from the consumer reporting agency before making a decision about whether to hire you. The prospective employer must also provide you with a reasonable amount of time to contest the information on the background check report before making a decision about whether to hire you. Do you have more questions? Contact us here.

What are the statutes of limitations for my claims?

Under Title VII, you must first file a charge with the Equal Employment Opportunities Commission (EEOC) before filing a lawsuit. In New York, you have 300 days from the adverse action to file a charge, but in other states your time to file may be only 180 days.

Under the FCRA, an action must be filed within two years after you discovered the violation, or within five years after the violation occurs, whichever is earlier.

Under the New York State Human Rights Law and New York City Human Rights Law, you have three years from the adverse action to file an action.

Both. For example, we represent individuals in everything from negotiations to litigations, and classes of people like the applicants to the Census Bureau who were denied jobs because of their criminal records, and for whom we recently achieved class certification.

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